U.S.: Law of war affects detention

Posted Thu, May 13th, 2010 6:38 pm by Lyle Denniston

The Obama Administration urged the D.C. Circuit Court on Thursday to leave undisturbed its first major ruling applying the Supreme Court’s 2008 decision on detainees’ rights, but did argue that the Circuit Court was wrong in declaring that international law does not put any limit on the U.S. government’s detention powers. International “law of war” principles, the new Administration document said, are directly implicated by the detention authority that Congress created after the Sept. 11, 2001, terrorist attacks. The new brief can be found here. It opposed en banc review by the Circuit Court of a Guantanamo Bay detention case, Al-Bihani v. Obama (Circuit docket 09-5051).

In the Al-Bihani decision (discussed in this post), a three-judge Circuit Court panel in January upheld the broadest view that any government has taken of presidential detention power, but went even further and declared that only domestic law controls who may be detained, thus providing no role for international law or treaties to play in limiting or defining that authority. That additional “broad statement,” the new Administration brief said, “does not properly reflect the state of the law.”

The brief went on to say, however, that the Circuit Court panel actually did examine the merits of a claim of a violation of international law, and rejected it. Thus, the misstatement about the law-of-war question does not justify further review of the case, the brief concluded. The new filing also disputed claims that the Circuit Court had taken away almost all of the procedural safeguards that Guantanamo Bay detainees need as they seek to challenge in federal District Court their continued confinement.

The case involves Ghaleb Nassar Al-Bihani, a Yemni national who has been at Guantanamo since 2002. A federal District judge upheld his continued detention, concluding that Al-Bihani had served as a cook in a military brigade that was supporting the Taliban movement in Afghanistan, with links to the Al-Qaeda terrorist network. Al-Bihani’s appeal of that ruling was the first Guantanamo case to reach the Circuit Court in the wake of the Supreme Court’s ruling in Boumediene v. Bush two years ago, declaring for the first time that Guantanamo detainees have a constitutional right to go to court to challenge their imprisonment. The Supreme Court, though, left much of the detail of how those challenges would actually play out in lower courts, and the Circuit Court panel decision rejecting Al-Bihani’s claims was the first appellate court ruling to start filling in some of the blanks.

Al-Bihani’s lawyers, supported by a group of human rights and civil liberties groups along with a number of legal scholars, formally asked the Circuit Court to cast aside the panel decision and reconsider his case before the full, en banc Circuit Court — a nine-member Court at the present time. That was the request that the Administration’s Justice Department lawyers opposed on Thursday, after the Circuit Court asked for the government’s views on the issue. The brief supported all aspects of the panel’s decision except its declaration that international law, including law-of-war principles, simply have nothing to say about U.S. detention power.

The new brief noted that President Obama had announced, two months after taking office, that the government understood that detention power had to conform to the law of war — a set of legal principles under international law that govern how nations are to act during wartime hostilities. Aside from the President’s statement, the brief said, there are many court precedents that say explicitly that no U.S. law should be interpreted in a way that puts it in conflict with international law.

The law that Congress passed after the 9/11 attacks — the Authorization for the Use of Military Force — is “informed by” the law of war, the brief said.

On another point, the brief disputed Al-Bihani’s argument that he should now be released because the U.S. military’s armed conflict with the Taliban forces in Afghanistan has ended and, since he was captured during that conflict, his detention had to end when those hostilities did. Armed conflict still is going on in Afghanistan, the brief argued, even if it is not specifically against the Taliban-dominated government that has been displaced in the country. In any event, the brief argued, it is up to the President and Congress, not the courts, to decide when an armed conflict has come to an end.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.